Morgan v. Colvin, No. 1:2015cv03141 - Document 21 (E.D. Wash. 2016)

Court Description: ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 15 is GRANTED. Defendants Motion for Summary Judgment ECF No. 17 is DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), this action is REVERSED and REMANDED to the Commissioner for proceedings consistent with this order. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Morgan v. Colvin Doc. 21 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ALICIA MICHELLE MORGAN, NO: 1:15-CV-3141-TOR Plaintiff, 8 9 10 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 15, 17. This matter was submitted for consideration without 15 oral argument. The Court has reviewed the administrative record and the parties’ 16 completed briefing, and is fully informed. For the reasons discussed below, the 17 Court grants Plaintiff’s motion and denies Defendant’s motion. 18 19 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means relevant evidence that “a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether this standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is 15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 18 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 20 nondisability determination.” Id. at 1115 (quotation and citation omitted). The ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 party appealing the ALJ’s decision generally bears the burden of establishing that 2 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 3 4 FIVE-STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 10 “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” Id. 13 § 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. 16 § 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 17 work activity. Id. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 18 gainful activity,” the Commissioner must find that the claimant is not disabled. Id. 19 § 416.920(b). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 If the claimant is not engaged in substantial gainful activities, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. Id. § 416.920(a)(4)(ii). If the claimant suffers from “any 4 impairment or combination of impairments which significantly limits [his or her] 5 physical or mental ability to do basic work activities,” the analysis proceeds to step 6 three. Id. § 416.920(c). If the claimant’s impairment does not satisfy this severity 7 threshold, however, the Commissioner must find that the claimant is not disabled. 8 Id. 9 At step three, the Commissioner compares the claimant’s impairment to 10 several impairments recognized by the Commissioner to be so severe as to 11 preclude a person from engaging in substantial gainful activity. Id. 12 § 416.920(a)(4)(iii). If the impairment is as severe as or more severe than one of 13 the enumerated impairments the Commissioner must find the claimant disabled 14 and award benefits. Id. § 416.920(d). 15 If the severity of the claimant’s impairment does meet or exceed the severity 16 of the enumerated impairments, the Commissioner must pause to assess the 17 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations, id. § 416.945(a)(1), is 20 relevant to both the fourth and fifth steps of the analysis. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (“past relevant work”). Id. § 416.920(a)(4)(iv). If the claimant is capable 4 of performing past relevant work, the Commissioner must find that the claimant is 5 not disabled. Id. § 416.920(f). If the claimant is incapable of performing such 6 work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 Id. § 416.920(a)(4)(v). In making this determination, the Commissioner must also 10 consider vocational factors such as the claimant’s age, education and work 11 experience. Id. If the claimant is capable of adjusting to other work, the 12 Commissioner must find that the claimant is not disabled. Id. § 416.920(g)(1). If 13 the claimant is not capable of adjusting to other work, the analysis concludes with 14 a finding that the claimant is disabled and is therefore entitled to benefits. Id. 15 The burden of proof is on the claimant at steps one through four. Bray v. 16 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). If the analysis 17 proceeds to step five, the burden shifts to the Commissioner to establish that (1) the 18 claimant is capable of performing other work; and (2) such work “exists in 19 significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 20 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 ALJ FINDINGS 2 Plaintiff filed an application for supplemental security income, dated July 3 21, 2011, alleging a disability onset date of February 1, 2010. Tr. 19. Plaintiff’s 4 claim was denied initially, and upon reconsideration. Tr. 19. Plaintiff requested a 5 hearing before an ALJ, Tr. 113, which was held on November 20, 2013, Tr. 38-68. 6 On December 19, 2013, the ALJ rendered a decision denying Plaintiff’s claim. Tr. 7 16-37. 8 At step one, the ALJ found that Plaintiff had not engaged in substantial 9 gainful activity since July 21, 2011, the application date. Tr. 21. At step two, the 10 ALJ found that Plaintiff had the following severe impairments: obesity; cervical 11 spine disorder; headaches; borderline personality disorder; posttraumatic stress 12 disorder (PTSD); bipolar disorder II; depressive disorder, not otherwise specified; 13 and pain disorder associated with both psychological and medical condition. Tr. 14 21. At step three, the ALJ found that Plaintiff does not have an impairment or 15 combination of impairments that meets or medically equals a listed impairment. 16 Tr. 24. The ALJ then concluded that Plaintiff had the RFC 17 18 19 20 to perform light work as defined in 20 CFR 416.967(b) with some additional limitations. Considering the effects of pain, the claimant can frequently climb ramps and stairs, and she can never climb ladders, ropes, or scaffolds. She can unlimitedly balance and can frequently stoop, kneel, crouch and crawl. The claimant can frequently perform overhead bilateral reaching. The claimant can perform work where exposure to moving machinery and unprotected ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 5 heights is not present. In order to meet ordinary and reasonable employer expectations regarding attendance, production and work place behavior, the claimant can understand, remember and carry out simple, routine tasks and can work in a predictable workplace environment. The claimant can perform work that does not require interaction with the general public as an essential element of the job, but occasional incidental contact with the general public is not precluded, and the claimant can have occasional co-worker contact with no tandem tasks or tasks involving cooperative team effort. 6 Tr. 26. At step four, the ALJ found Plaintiff is unable to perform any past relevant 7 work. Tr. 32. At step five, the ALJ found that, considering Plaintiff’s age, 8 education, work experience, and RFC, there are jobs in significant numbers in the 9 national economy that Plaintiff could perform, such as production assembler, hand 2 3 4 10 packager, and mail clerk. Tr. 33. On that basis, the ALJ concluded that Plaintiff 11 was not disabled as defined in the Social Security Act. Tr. 33. 12 On June 12, 2015, the Appeals Council denied Plaintiff’s request for review, 13 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 14 of judicial review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 15 DISCUSSION 16 Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 her disability benefits and supplemental security income. See ECF No. 15. While 18 Plaintiff has presented a number of issues in this appeal, the Court concludes the 19 ALJ erred in failing to properly evaluate the opinion of Plaintiff’s treating 20 physician, and therefore remands the case for further proceedings. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 A. 2 A treating physician’s opinions are entitled to substantial weight in social 3 security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 4 (9th Cir. 2009). If a treating or examining physician’s opinion is uncontradicted, 5 an ALJ may reject it only by offering “clear and convincing reasons that are 6 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 7 Cir. 2005). “However, the ALJ need not accept the opinion of any physician, 8 including a treating physician, if that opinion is brief, conclusory, and inadequately 9 supported by clinical findings.” Bray, 554 F.3d at 1228 (quotation and citation 10 Evaluation of Dr. Sumners’ Opinion omitted). 11 Even if a treating physician’s opinion is contradicted by another physician, 12 the ALJ may not simply disregard it, and is required to consider factors set out in 13 20 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to afford the 14 treating physician’s medical opinion. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th 15 Cir. 2014) (citing Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007)). “These 16 factors include the ‘length of the treatment relationship and the frequency of 17 examination’ by the treating physicians, the ‘nature and extent of the treatment 18 relationship’ between the patient and the treating physician, the ‘supportability’ of 19 the physician’s opinion with medical evidence and the consistency of the 20 physician’s opinion with the record as a whole.” Id. (quoting 20 C.F.R. § ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 404.1527(c)(2)-(6)). “In many cases, a treating source’s medical opinion will be 2 entitled to the greatest weight and should be adopted, even if it does not meet the 3 test for controlling weight.” Id. (quoting Orn, 495 F.3d at 631). 4 Similarly, “an ALJ may not simply reject a treating physician’s opinions on 5 the ultimate issue of disability.” Id. (citing Holohan v. Massanari, 246 F.3d 1195, 6 1202-03 (9th Cir. 2001)). An ALJ may only reject a treating physician’s 7 contradicted opinions by “providing specific and legitimate reasons that are 8 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 9 Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). “An ALJ 10 can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and 11 thorough summary of the facts and conflicting clinical evidence, stating his 12 interpretation thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 13 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 14 1998)). 15 Here, after treating Plaintiff for approximately five months, on April 22, 16 2013, Dr. Rory Sumners completed a medical report in connection with Plaintiff’s 17 application for social security benefits. Tr. 514-15. In the report, Dr. Sumners 18 diagnosed Plaintiff with chronic neck pain, chronic cephalgia, fibromyalgia, 19 schizoaffective disorder, and prediabetes. Tr. 514. Dr. Sumners reported that 20 Plaintiff displayed 12 out of 18 fibromyalgia tender points upon examination. Tr. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 515. Further, Dr. Sumners opined that Plaintiff needs to lie down 1-3 hours a day 2 due to headache pain; that work on a regular and continuous basis could cause 3 Plaintiff’s condition to deteriorate; and that due to “symptoms [that] are frequently 4 debilitating,” Plaintiff would likely miss work approximately four or more days per 5 month. Tr. 514-15. 6 Plaintiff argues the ALJ erred by failing to directly discuss and evaluate this 7 opinion. ECF No. 15 at 18-20. In support, Plaintiff asserts the ALJ misattributed 8 Dr. Sumners’ opinion as one from Lori Drews, ARNP, and consequently, 9 considered this opinion under the wrong legal standard. Id. 10 11 12 13 14 15 16 The Court agrees. Not only does the ALJ fail to explicitly reference Dr. Sumners, but in regards to Ms. Drews’ opinion, the ALJ found: Ms. Drews later found that the claimant’s physical impairments require her to lie down and rest for one to three hours each day and working would cause her condition to deteriorate. Ms. Drews found that the claimant has 12 of 18 positive tender points for fibromyalgia. I give these findings and opinions very little weight. I note that Ms. Drews is not an acceptable source of medical opinions under Social Security Administration regulations. Furthermore, she did not provide clinical examination findings to support her opinions, and it appears that her conclusions rely on the subjective reports by the claimant rather than objective findings. 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Tr. 31. Upon review of the ALJ’s findings, it is evident the ALJ mistakenly 2 attributed Dr. Sumners’ medical report as one from Ms. Drews. 1 Consequently, as 3 Ms. Drews is an ARNP and considered an “other source,” see 20 C.F.R. §§ 4 404.1513(d); 416.913(d), the ALJ appears to have evaluated Dr. Sumners’ findings 5 under the “other source” standard, which states such opinions are not entitled to 6 controlling weight and only require an ALJ to provide “germane reasons” to reject 7 the opinion. See SSR 06-03p, 2006 WL 2329939 at * 2; Molina v. Astrue, 674 8 F.3d 1104, 1111 (9th Cir. 2012). 9 In contrast, as a treating physician, Dr. Sumners’ opinion is entitled to 10 substantial weight. See Bray, 554 F.3d at 1228. If uncontradicted, the ALJ is 11 required to provide clear and convincing reasons, supported by substantial 12 evidence, to reject Dr. Sumners’ opinion. See Ryan v. Comm’r of Soc. Sec., 528 13 F.3d 1194, 1198 (9th Cir. 2008). If contradicted, the ALJ may reject the opinion 14 by providing specific and legitimate reasons that are supported by substantial 15 1 The Court observes that the opinions of Dr. Sumners and Ms. Drews are 16 contained within the same exhibit (Exh. 20F), with Dr. Sumners’ medical report 17 consisting of the first two of five pages and Ms. Drews’ mental evaluation 18 consisting of the last three pages, which is likely how the ALJ came to make this 19 mistake. See Tr. 514-18. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 evidence in the record. See Hill, 698 F.3d at 1159-60. Under either standard, to 2 satisfy the substantial evidence requirement, the ALJ must summarize the facts and 3 conflicting evidence, provide her own interpretations thereof, and explain why 4 they, rather than Dr. Sumners’, are correct. See Garrison, 759 F.3d at 1012. Here, 5 because the ALJ apparently analyzed Dr. Sumners’ opinion as an “other source,” 6 the ALJ did not adequately perform these steps. 7 8 9 10 Accordingly, based on the foregoing, this Court finds that the ALJ failed to consider or properly reject Dr. Sumners’ opinion and a remand is required. B. Remedy When an ALJ’s denial is based upon legal error or not supported by the 11 record, the usual course is for the Court to remand for further proceedings or 12 explanations. See Hill, 698 F.3d at 1162. Plaintiff urges the Court to conclude that 13 remand is not necessary and that the Court can find Plaintiff is disabled on the 14 record as it stands. ECF No. 15 at 31. However, remand is appropriate “where 15 there are outstanding issues that must be resolved before a determination can be 16 made, and it is not clear from the record that the ALJ would be required to find the 17 claimant disabled if all the evidence were properly evaluated.” Hill, 698 F.3d at 18 1162. In this case, there remains outstanding issues to resolve. For instance, 19 whether, when the evidence is properly evaluated, Plaintiff’s limitations impair her 20 ability to perform basic work activities, and the ALJ must consider the limitations ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 imposed by Plaintiff’s impairments in assessing her RFC. In making these 2 determinations, the Commissioner must properly evaluate the opinions of 3 Plaintiff’s treating physician. By failing to properly evaluate the medical opinion 4 evidence, the entire complexion of the case has changed. Whether a proper 5 evaluation of the medical opinion evidence can be reconciled with the ALJ’s 6 existing adverse credibility determination or any of the other remaining issues in 7 the case is for the Commissioner to decide in the first instance. 8 Upon remand, the ALJ should further develop the record and issue a new 9 decision. The ALJ should reevaluate all of Plaintiff’s impairments; all medical 10 source opinions; Plaintiff’s RFC; findings at step three, and if necessary Plaintiff’s 11 ability to perform work at steps four and five; and Plaintiff’s credibility. Plaintiff 12 may present new arguments and evidence and the ALJ may conduct further 13 proceedings as necessary. 14 ACCORDINGLY, IT IS HEREBY ORDERED: 15 1. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is GRANTED. 16 2. Defendant’s Motion for Summary Judgment (ECF No. 17) is DENIED. 17 3. Pursuant to sentence four of 42 U.S.C. § 405(g), this action is 18 REVERSED and REMANDED to the Commissioner for proceedings 19 consistent with this order. 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 2 3 The District Court Executive is hereby directed to file this Order, enter Judgment for Plaintiff, provide copies to counsel, and CLOSE the file. DATED July 20, 2016. 4 5 THOMAS O. RICE Chief United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14

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